Letters patent No. 126,938, issued May 21, 1872, to Demartini & Chertizza, for improved method of ballasting vessels in port by means of floating logs, to be attached to each side of the vessel, Mld, not infringed by the use of the device for which letters patent No.232.435 were issued September 21. 1880, to Barnes & Gatto, consisting of a with two compartments atlixed to one aide of the vessel only.

In Equity·. Seba8tian Brown and I. Nevitte Steele, for complainant. W. Pinkney Whyte and John H. Barnes, for defei.Idants. Before BOND and MORRIS, JJ. By THE COURT. This bill of complaint is filed for an alleged In· fringement of patent No. 126,938, granted May 21, 1872, to Demartini & Chertizza, for improvement in methods of ballasting vessels in port, which has been assigned to the complainant. The patentees' specifications ·Iltate that.. Under the [then] present practice, when a vessel arrives in port and dIscharges her cargo, ballast must be immediately taken in to prevent careening and consequent injury to herself and other craft, as well as to facilitate repairs and other operations incident to preparation for a new voyage. To avoid the loss of time 3nd expense attending this course, we employ ballast logs, connected with the vessel by ropes or chains, that lie along-side thereof, and yet float in the water, as hereinafter described."

The specification then describes the logs as simple pieces of timber, or several smaller sticks boIted to each other, made proportioned to the size and weight of the vessel, and, if necessary, weighted with lead or iron. "The .logs are in all cases designed to float or be self-sustaining·in the water, and thus made capable of being towed from place to place or vessel to vessel. They are attached to a vessel by ropes or chains, fastened to the logs and passing over the deck, or around any suitable part of the frame-work, or otherwise secured, as found practicable or convenient. The logs are not intended to hold the vessel down in the water, but merely to act as counter or balance weights when sbe attempts to keel over from any cause, either when being towed or lying along-side a wharf; and it is evident. the chains on one side will be taut only when those on the other are slack, and 'IYics versa,-the tendency being to raise the log upon the rising side out of the water. The weight of the log will always prevent this being done, and consequently the will be held in an upright position." v.9.no.7-30

FEDERAL REPORTER.

The claim is "the method of ballasting vessels by means of floating logs, of suitable size, weight, and construction, attached to said vessels by ropes and chains, and arranged along-side thereof, substantially as specified." The device described in this patent has been introduced by the complainant into very, general' use in the ports of Boston, New York, Philadelphia, and Baltimore, among vessels requiring ballast to keep upright in port when empty, and particularly among grain vessels, which are required to be completely emptied and ceiled before receiving cargo. The defendants, in their answer, deny that the device used by them is an infringement, and also charge that the complainant's patent is invalid by reason of long prior knowledge apd public use. 'l'he device used by the defendants is one for which a patent has been granted to them, No. 232,435, dated September 21, 1880, for harbor ballast for ships. It is also io be attached to' the outside of the ship, but on one side only. It consists of a floMing water-tight box or pontoon, divided into a lower and an upper compartment. The lower compartment is filled with water, and the upper one is air-tight and empty. It is attached to one side of the ship by means of chains or ropes,.......one fastened to the ship's deck, and the other carried under her keel and up the other'side. If the ship careens aWRy from the side on which it is attached, the weight, of the box and of the water contained in the lower COm!lartment pulls the ship back to an upright position. If the ship careens towards the side on wh,ich it is attached, the buoyant power of the empty air-tight compartment is sufficient to check the tendency of the ship to overturn towards that side. The conclusion to which we' have arrived is that there is no infringement. The device 9£ the complainant is a combination of two weights. That the weIghts float in the water is only an incident of their usefulness, and has nothing to do with the essentia:! principle of their action; As stated in the specifications of the patent, it is only the resistance of the weight of the log when the Yessel, in keeling over, attempts to lift it from the water which produceEl the result intended. It is the two counter",palaneina.weights which the inventor l'elied upon, and one without the other would b(> useless. ,The defendants' device makes us!'! of but one weight; and the ter-balance is produced by the buoyant power of the. air-tight ber of the pontoon. This made efficient by haying the pontoon, not loosely floating by the side of ship'ias is the case with the ballast logs, but so secured to the ship that it cannot remain floating

AMERICAN

LOC} CO. OF NEW YORK V. BARNES.

467

in the water when the ship careens towards it, but is carried down and submerged until its buoyant power checks the ship and returns her to an upright position. This, it seems to us, is a different inven. tion from described and claimed in complainant's patent. It may have been the result of a study of the complainants' device, stirn. ulated by its success, but the defendants have rejected one of the essential elements of complainant's combination, and substituted in its place a new mode of accomplishing the same object, which, in our judgment, is not a mechanical equivalent, and is not similar in principle or operation. The buoyancy of the air chamber on one side of the ship does not perform the same function as was performed by the weight which is dispensed with on the other side. The function of the weight was to drag, down the side of the ship b;y which it: 'Was being lifted from the water. The function of the' air chamber is to resist the tendency of the shipm careening to bUl'y it under the water. The quality of buoyan(ly is not called into action at all in com· 'plainant's device. It is useful to that device only so far as it renders the logs easy of transportation to the ship, and so far as it renders the logs inactive when the vessel is in an upright position. Its use in any other way, or for any other purpose, is not suggested in complainant's specifications or claim. ,Complainant's patent cannot be construed to cover all methods by which ,vessels may. be ,kept upright in port by,:uteans of contrivances fastened on the outside and floating in the but only such as are substantially identical with the d,eville described ih the patent, in construction, form, and principle of operation. Case v. Brown, 2 Wall. 320. . , ' Being cleadyof opinion that the charge of infringement is' not sustained, and that there can be no decree in favor of the complainant, it is not for us to consider the defence of want of novelty flat up by answer·. ,Bill dismissed.

468

FEDERAL

THE FERRERI.

(lJistrict Court, E. lJ. New York.

1.

November 19,1881.)

CONVERSION-JURISDIcTION OF THE DrsTUICT COURT.

Where goods, that had been sold to be paid for on delivery, were shipped in the name of the vendors, It shipping receipt given to them, and a bill of lading subsequently given to the vendee, who then absconded, held, that upon the refusal of the master to give the vendors a bill of lading, they could recover against the vessel the value of the goods without a demand; and that, as the vessel was in navigable waters, the tort was maritime in its character, for which an action could be brought in the district court.

W. W. Goodrich, for libellants. L. Ullo, for claimant.BENEDICT,

D. J.

The facts in this case are as follows:

In September last one Theodore Michel agreed, through a broker, to purchase of the libellants 167 barrels of resin, the resin to be shipped on the bark Ferreri in the name of the libellants, they to take the ship's receipt and deliver the same to Michel upon his paying for the goods. Accordingly, the' libellants directed Johnson & Hammond, the keepers of a yard where the libellants had resin stored, to deliver 167 barrels of resin to the bark :Ferreri on their account. Johnson & Hammond sent the goods to the bark, where they were received by tho mate, who gave in return a shipping receipt stating the receipt of the goods in question in good order from Johnson & Hammond on board the bark Ferreri for account of Tolar & Hart. After thfl goods had thus been placed on board. the bark, Michel, who Was agent for the bark in this port, procured the master to issue to him, as shipper, a bill of lading for the goods so delivered, and then absconded without paying the libellants for them, although payment had been demanded, accompanied by a tender of the shipping receipt. "After the departure of Michel, Tolar & Hart demanded question, of the master that he .issue to them a bill of lading for the goods accompanying the same with a tender of the shipping receipt. The master refused, upon the ground that he had already issued a bill of lading for the goods to Michel, whereupon Tolar & Hart libelled the vessel.

in

Upon these facts it is plain to be seen that Tolar & Hart had no intention to part with their goods until the same were paid for. This. intention they carried into effect by causing the goods to be placed on board the vessel in their name, and by taking the receipt for the goods as received by the vessel on their account. The delivery of such a receipt to Tolar & Hart bound the Ship-master to execute or withhold the bill of lading according to their direction, and left the title to the property unchanged. Brown v. Pea,body, 8 Kern. 121. When, therefore, after Michel had absconded, the master refused to issue a bill of lading for the goods to Tolar & Hart, assign-